City's stormwater inspectors keep an eye out for violations

The rules of the drain

Construction, like this project on Powers Boulevard, must meet standards.

On July 21, a city stormwater inspector pulled up to Pioneer Sand Company's storage yard at 8335 Vollmer Road in northeast Colorado Springs.

The inspector observed "large amounts of sediment" entering the city's storm sewer drain on the yard's southern boundary. Technically speaking, the sediment flowed into the "municipal separate storm sewer system," dubbed MS4, for which the city has a federal permit. That permit regulates the kind and amount of materials that can be flushed into the stormwater system, which empties into state waters and, ultimately, federal rivers and streams.

The inspector also noted "a lack of adequate erosion controls in the drainage channel that leads directly to" the storm sewer, according to a notice of violation of city stormwater regulations. The notice was issued Oct. 12 after an Aug. 2 meeting with Pioneer officials failed to lead the company to fix the problem.

Pioneer didn't return a phone call seeking comment, but it's not alone. Pioneer's notice is one of 20 compliance actions taken so far this year against industries, builders and developers across the city.

That sounds like a tiny number, considering there's a lot of construction underway these days. But it represents a 10-fold increase over 2015 and a dramatic uptick from a time when the city largely ignored violations of its own stormwater regulations. And this could just be a start — the city is also looking at a new program that would give it even more muscle against violators.

The ramp-up is due in part to Mayor John Suthers' response to pressure from the Environmental Protection Agency and the Colorado Department of Public Health and Environment. Those agencies issued two highly critical reports of the city's stormwater maintenance and regulation enforcement in recent years, and on Nov. 9 the EPA filed a lawsuit alleging the city's lax approach violates its MS4 permit and the Clean Water Act. The lawsuit could bring multi-million-dollar civil penalties and federal monitoring.

In early 2007, City Council imposed stormwater fees on property owners, raising about $16 million a year for drainage projects and maintenance.

But in 2009, the Council defunded the program after voters approved a measure aimed at killing the fees. After that, the EPA lawsuit states, the city's stormwater program limped along on an average of $1.6 million a year from 2011 to 2014.

Despite a scathing EPA report in 2013, then-Mayor Steve Bach did little, and even opposed a citizen-driven ballot measure for drainage that failed in 2014. Without more money, city officials have said, they couldn't effectively track down violators.

That neglect had ramifications: In addition to possible EPA fines, uncontrolled drainage enraged officials in downstream Pueblo County, who in turn threatened agreements on Colorado Springs Utilities' Southern Delivery System pipeline. So, earlier this year, Suthers and Council adopted a $460-million, 20-year stormwater program to fend off fines and cope with the city's extensive drainage problems. One part of that program: oversight to verify compliance by contractors. Last year, the city's stormwater staff numbered about 20. Today, it stands at 56, and another 10 will be added next year. Many of those are inspectors who troll for violators, like the one who showed up at the Pioneer Sand site.

Though stormwater program manager Rich Mulledy says inspectors fan out over the city, most offenses were spotted on the city's northeast side where development is brisk, records show.

Rivers Development, working at a site on Explorer Drive, was slapped with eight violations in a Sept. 30 noncompliance letter, including failure to remove sediment from paved surfaces before it washes into storm drains.

CMC Inc., at a site at Barnes Road and Powers Boulevard, got hit with a notice for a lot that was "loaded" with sediment.

Short Stick, LLC, an entity associated with developer Jim Morley, was issued three separate letters of noncompliance between March 11 and Sept. 2 for properties north of Woodmen Road and east of Powers, citing problems ranging from the need for berms to stockpiled materials on paved surfaces.

Gold Hill Neighborhood LLC, on the Westside, also was issued three letters listing various concerns.

Most recently, on Nov. 3, the city issued a noncompliance letter to the developer of a Starbucks at Tutt and Stetson Hills boulevards, noting one side of the site had "no sediment controls ... currently installed."

In a more serious step, the city has issued two stop-work orders, a move stemming from a property owner's failure to act. On July 8, the city ordered Challenger Homes to stop work at Dublin Terrace Townhomes (a spokesman for Challenger Homes says the stop-work order resulted from a "miscommunication"), and on Aug. 12, officials halted a Henning Construction Managers Kum & Go project at Platte Avenue and Wooten Road. Both were said to be working without a state permit for providing drainage facilities.

"In both of those, they addressed it and went back to work," Mulledy reports.

Mulledy stresses the city would rather gain compliance than punish builders. He doesn't like the word "crackdown" to describe the city's approach in enforcing its MS4 permit, which requires erosion control for all projects larger than one acre.

"Just because of the number of houses being built, we've really stepped up," he says, quickly adding that the industry has proven a willing partner. The city, he notes, has the authority to issue summonses that carry fines of $500 per day, but no fines have been levied so far.

"We've had compliance," he says, "We're committed from the city's standpoint to make sure we're doing the right thing to meet our permit going forward, and I feel the industry is supportive going forward. We have to meet the federal permit for sure, but we want to do the right thing and still have developers make progress and be able to do business."

Builders and developers are all in, says Tim Seibert, president of the Housing and Building Association of Colorado Springs.

"Obviously, just like the mayor stated, we're not pleased to hear the EPA has filed a lawsuit," Seibert says. "We think there is a better solution. But at the end of the day, we want to be at the table and be sure we're in compliance."

Seibert says the HBA hosts monthly "Wet Wednesday" meetings at which its members are instructed in stormwater regulations, such as erosion control and best management practices.

"With the recent enforcement, we've stepped that up," he adds. "We've made it more thorough. We've gotten a lot of cooperation from the city telling us, 'These are the practices we need to see.' I think that's been very helpful for them to get in contact with guys in the field doing the implementation."

The HBA also added a monthly meeting with Mulledy at which design standards are discussed. "We want to make sure we're not getting ourselves in trouble, and we don't want the city to get in trouble," Seibert says.

He also says that as the city shapes its program to satisfy federal authorities, HBA members realize more enforcement is coming.

Mulledy won't discuss details of the new program — still being worked out — but says it will clarify enforcement steps, and allow officials to "jump steps" if a violation poses an immediate threat to the city's stormwater system or downstream. Currently being reviewed by stakeholders, the program will be introduced within a few months.

"In general," Mulledy says, "it's going to be more specific and give us more tools."